Gregg v. State

• Decision Date: 31 August 1994
• Docket Number: No. 13-93-284-CR,13-93-284-CR
• Citation: 881 S.W.2d 946
• Parties: Lloyd Earl GREGG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 946

881 S.W.2d 946

Lloyd Earl GREGG, Appellant, v. The STATE of Texas, Appellee.

No. 13-93-284-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1994.

Rehearing Overruled Oct. 6, 1994.

James R. Lawrence, Corpus Christi, for appellant.

Carlos Valdez, Dist. Atty., James D. Rosenkild, Asst. Dist. Atty., Corpus Christi, for appellee.

Before SEERDEN, C.J., and DORSEY and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

SEERDEN, Chief Justice.

This is an appeal from a capital murder conviction. The jury found appellant guilty of shooting to death his wife's uncle, while in the course of committing burglary. After the prosecution waived the death penalty, the trial court assessed a life sentence.

Appellant asserts three complaints: (1) the trial court erred in permitting the jury to separate after the charge was read; (2) the trial court erred in refusing to grant a mistrial after one juror became ill during deliberations; and (3) the trial court erred in holding the evidence as sufficient to support his conviction. We affirm the judgment of the trial court.

Statement of Facts

Appellant and Melinda Gregg were married in May 1990 and had one son. They had an on-again-off-again relationship, often separated more than they were together. During the times they were together, they frequently lived with Melinda's family in Corpus Christi.

In February 1992, appellant and Melinda separated. Appellant moved to Houston, and Melinda retained custody of their son and continued to live with her mother, sister, brother, uncle, and grandparents in the family home. Since the separation in February 1992, appellant never again lived in the home, although he visited Melinda and his son on several occasions.

On September 4, 1992, two days before committing the offense, appellant drove from Houston to Corpus Christi. The purpose of his trip is in dispute as to whether appellant intended to kill Melinda or kidnap his son. On the morning of September 6, 1992, appellant went to Melinda's home. Her grandfather was outside mowing the lawn and did not see appellant enter the house. The only inhabitants were appellant's fifteen-month-old son; Melinda's sister, Jennifer Gonzales; and Melinda's uncle, Rudy Prado. Jennifer was babysitting appellant's son, and Rudy was sleeping on the living room floor on a mattress. Jennifer did not hear appellant enter the house or anything else until she heard two gunshots. She ran to the living room where she saw appellant getting up from kneeling near Rudy. She then ran back to the bedroom and picked up appellant's son, but appellant forced her at gunpoint to hand over the child. Appellant fled, and Jennifer then called 911.

The police arrived to find Rudy lying on the mattress, dead from two gunshot wounds to the head. There was no sign of a struggle; his head was on a pillow, and he was covered with a blanket. The police arrested appellant the same day.

Following a three-day trial and approximately one hour into deliberations on guilt, the presiding juror suddenly became ill and required an ambulance. The court asked both counsel if they agreed to let the jury separate. Each replied that he had no objection. The court then advised the jury and appellant that it did not know whether the presiding juror would be able to continue the following day, and that because the deliberations could not continue without all twelve jurors, the court would recess until the following morning. The court then explained that if the ill juror was not able to continue, it would have to declare a mistrial. After reminding the jurors not to discuss the case until after they had been discharged, the court excused them at 2:00 p.m. on Thursday with instructions to return 9:00 a.m. on Friday.

Early Friday morning, the court spoke with the presiding juror on the telephone while he was still in the hospital. The juror assured the court that he was all right and would be ready to return to court the following Monday at 9:00 a.m. The court then excused the eleven jurors with instructions to return Monday at 9:00 a.m. Appellant's counsel then moved for a mistrial, complaining that appellant was prejudiced by the length of time the jurors were separated. The court overruled the motion, notified counsel of the telephone conversation it had had with the ill juror, and instructed counsel to return to court on Monday.

The presiding juror returned for duty on Monday morning. Appellant's counsel again moved for a mistrial. The gist of this second motion was three-fold: First, he complained that he never agreed to the extended period of jury separation. Second, he cited as authority supporting his motion, article 36.29 of the Texas Code of Criminal Procedure, which governs discharge of the jury when a juror becomes ill after the charge is read. Finally, he complained that even though he had the affirmative duty under article 35.23 of the Texas Code of Criminal Procedure to move to sequester the jury, sequestration was not a viable option since the one juror was hospitalized. The court overruled appellant's second motion for mistrial. The jury then proceeded with its deliberations and returned forty minutes later with a guilty verdict. The court accepted the verdict and assessed a life sentence.

Points of Error

In his first point of error, appellant asserts the trial court erred in allowing the jury to separate after the charge had been read to the jury, citing as authority, article 35.23 of the Texas Code of Criminal Procedure. As amended in 1989, article 35.23 provides, in part, that the trial court may on its own motion, or shall on either party's motion, order the jury to be sequestered after the charge is read. Tex.Code Crim.Proc.Ann. art. 35.23 (Vernon Supp.1994).

There is limited case law interpreting the 1989 amended version of article 35.23, which no longer forbids separation of jurors after the charge is read. ¹ Krueger v. State, 843 S.W.2d 726, 728 (Tex.App.--Austin 1992, pet ref'd) (per curiam). Rather, it permits jurors to separate unless the court or party makes a motion to sequester the jury. Id.; Hood v. State, 828 S.W.2d 87, 92 (Tex.App.--Austin 1992, no pet.). Here, appellant failed to make a timely motion to sequester the jury. Without such a motion, it is within the trial court's discretion to permit the jury to separate. Keiser v. State, 880 S.W.2d 222, 223 (Tex.App.--Austin, 1994, no pet. h.).

In order for appellant to preserve his complaint for appellate review, appellant must have presented to the trial court either a timely objection to jury separation or a timely motion to sequester the jury. See Tex.R.App.P. 52(a). To be considered timely, objections and motions must be made at the earliest possible opportunity. See, e.g., Martinez v. State, 863 S.W.2d 468, 472 (Tex.Crim.App.1993) (addressing the Tex.R.App.P. 52(a) timeliness requirement for preserving error).

Appellant's earliest possible opportunity to either timely object or make a motion occurred when the ill juror left in the ambulance and the court asked counsel, "Do you agree to let the jury separate?" Appellant's counsel failed to seize this opportune time to either object or make the motion. In fact, he replied, "I have no objection."

In the absence of a timely motion or objection, nothing is presented for appellate review. Cooper v. State, 500 S.W.2d 837, 841 (Tex.Crim.App.1973). Because appellant did not timely make a motion, or object whatsoever, he failed to preserve this point of error for review. Accordingly, we overrule point of error one.

In his second point of error, appellant asserts the trial court erred in failing to grant his motion for mistrial. Although appellant moved for mistrial twice, it is his second motion concerning ill jurors that is the focus of this point. Appellant cites article 36.29 of the Texas Code of Criminal Procedure as authority mandating mistrial when a juror becomes ill after the charge is read. Article 36.29(c) provides, in part, that after the charge is read, if any juror becomes so sick as to prevent him from continuing his duty, the jury shall be discharged. Tex.Code Crim.Proc.Ann. art. 36.29(c) (Vernon Supp.1994) (emphasis added).

Here, the issue is whether the presiding juror was so sick as to prevent him from continuing his duty; if so, the court should have granted the mistrial. Appellant cites no authority for the applicable standard for reviewing this issue. Neither the State nor this court found authority directly on point in determining what constitutes "so sick" within the meaning of article 36.29(c). However, case law is replete with authority on the proper standard for reviewing a trial court's decision as to whether a juror is "disabled" within the meaning of article 36.29(a) of the Texas Code of Criminal Procedure. See, e.g., Bass v. State, 622 S.W.2d 101, 106-07 (Tex.Crim.App.1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982); Freeman v. State, 838 S.W.2d 772, 774 (Tex.App.--Corpus Christi 1992, pet. ref'd). The trial court has discretion to determine whether a juror is disabled. Id. Absent an abuse of discretion, no reversible error will be found. Id.

The same standard used in reviewing juror "disability"--the abuse of discretion standard--should be used in reviewing the severity of juror illness. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)). Another way of stating the test is whether the act was arbitrary or unreasonable. Id.

Here, after the presiding juror became ill, but before the court recessed the jury on Thursday afternoon,...